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Waiving Due Process (Goodbye): Stipulated Orders of Removal and the Crisis in Immigration Adjudication

In recent years, the federal government has deported a surprising number of noncitizens through a little-known procedure called stipulated removal, in which a noncitizen agrees to the entry of a formal removal order while waiving the right to an in-person hearing before an Immigration Judge. The federal government has looked to stipulated orders of removal as a partial solution to the mismatch between its enforcement goals and the resources of the immigration court system – a mismatch that, many commentators agree, has reached a state of crisis. Stipulated removal arguably offers some benefits to both the noncitizen and the government, insofar as the noncitizen stands to receive a shorter time in immigration detention and faster removal, while the federal government benefits from efficiency gains and political rewards. This Article, the first academic piece to examine stipulated orders of removal, draws from extensive internal government documents and data obtained through the Freedom of Information Act (FOIA) to examine the stipulated order of removal program. It argues that stipulated orders of removal under current law and practice should not function as a partial solution to the crisis in immigration adjudication. The Article offers an in-depth examination of stipulated removal, which has largely affected unrepresented noncitizens in immigration detention centers who faced severe information deficits during the removal process. Relying on both the illegal re-entry context and the familiar Mathews v. Eldridge procedural due process framework, the Article argues that the stipulated order of removal program as implemented thus far violates due process, and offers suggestions for reform.